The production of the accused before the Magistrate after 24 hours of his arrest does not render the custody illegal, and the proper remedy for illegal detention is a writ or habeas corpus petition under Article 220 of the Constitution and not a revision under Section 397/401 Cr. P. C.

( 1 ) THIS revision is directed against the order dated 4-2-94 passed by Sri. J. P. Srivastava, Special Judge (D. A. A.) Jhansi whereby the application for his release in crime no. 12 of 1994 under Sections 395/412 IPC relating to police station Raksa, district Jhansi has been rejected.

( 2 ) APPLICANT Manoj Kumar Agrawal was arrested on 2-2-94 at 2. 00 P. M. in Kanpur while co-accused Prakash was arrested at 5. 20 P. M. on the same day. They were brought to police station Raksa at 10. 00 A. M. on 3-2-94 but were produced before the Magistrate on 4-2-94 at 3. 00 P. M. The main contention of the learned counsel appearing for the applicant was that the applicant and co-accused Prakash were produced before the Magistrate after 49 and 46 hours, respectively, of their arrest and, therefore, their detention being for more than 24 hours was illegal and in violation of Art. 22 (2) of the Constitution as well as Sections 57 and 167 of the Criminal Procedure Code, and, therefore, they rightly claimed release but by the impugned order their fundamental right guaranteed by the Constitution has been denied. From the order impugned in the present revision it appears that they were taken from one place to another in connection with the investigation to recover certain looted property. In support of the above submission, the learned counsel for the applicant relied upon a Division Bench decision in the case of Avadh Bihari Rai v. State of U. P. 1989 All Cri C 593 (LB), a learned Single Judge case in Sudhakar alias Chunna v. State of U. P. , reported in 1985 All Cri C 105 : (1984 All LJ 1183) and a judgment in Criminal Revision No. 1891 of 1993 (Rajesh Misra v. State of U. P.) decided on 20-1-94.

( 3 ) NOW the question that arises for determination is as to what remedy is available in the cases where the accused claims release due to illegal detention or custody on the basis of illegal remand orders of production before the Magistrate after 24 hours of his arrest as contemplated under Section 57 and 167 of the Code of Criminal Procedure and sub article (2) of the Article 22 of the Constitution of India.

( 4 ) WHETHER there is accusation pending against any person or he is under trial for any offence the remand orders in such cases would be interlocutory in nature which are not revisable under Section 397 (2) of the Criminal Procedure Code as those orders will not affect the accusation or charge pending against him. He can claim release by means of a habeas corpus petition or a writ petition proving his detention or custody as illegal. Thus in my opinion the proper remedy available in such cases is a writ or habeas corpus petition under Article 220 of the Constitution and not the revision under Section 397/401 Cr. P. C. The legislature has withdrawn Section 491 of the old Criminal Procedure Code with regard to habeas corpus. In the new Criminal Procedure Code there is no corresponding Section to sec. 491 Cr P. C. Sometime accused persons allege illegal detention on the basis of illegality or impropriety in the series of remand orders. By means of a single revision all those remand orders cannot be sought to be revised.

( 5 ) SO far as the illegal detention for more than 24 hours is concerned, that question came up for consideration before the Supreme Court in the case of Saptawna v. State of Assam 1971 Cri LJ 679 and the relevant portion of that reported decision is quoted below :-"the learned counsel for petitioner says that the petitioner is entitled to be released on three grounds : (1) The original date of arrest being 10/01/1968 and the petitioner not having been produced before a Magistrate within 24 hours, the petitioner is entitled to be released; (2) The petitioner having been arrested in one case on 24/01/1968 and he having been discharged from that case, he is entitled to be released; and (3) As the petitioner was not produced for obtaining remand he is entitled to be released. (3) A similar case came before this Cour